Elena Kagan May Find Double Standard in Senate Hearing

Tuesday, June 29, 2010

Senate confirmation hearings for Solicitor General Elena Kagan began yesterday. If confirmed, Kagan would become the fourth woman to sit on the country's highest bench. But before she dons that black robe, Kagan must undergo a week of grilling by the Senate Judiciary Committee. The process of a week-long question-and-answer session for nominees began in 1939. A new study reviewed the hundreds of hours of transcripts from confirmation hearings over the last 70 years and found the process can often produce substantive information indicating the changing of the times. It also shows that women and minority candidates are often questioned more thoroughly and pressed further on their judicial philosophies. 

We talk with Lori Ringhand, a professor of law at the University of Georgia and one of the authors of the study. Ringhand says it is likely Kagan will be questioned on her views on civil rights issues and the Second Amendment.


Lori Ringhand

Produced by:

Arwa Gunja

Comments [3]


What a weird study. And an even weirder, more superficial report in this segment of The Takeaway.

I shall presume that most listeners came away with the "the takewaway" that women and minority nominees to the U.S. Supreme Court face a tough, uphill battle to be confirmed. That is practically a quote from Celeste Headlee. I strongly suspect that Ms. Headlee didn't read the report, as I have this morning.

Let's look at some numbers. Because for a "study" of behavior, the numbers of Supreme Court nominees are ridicuously small. There have been only three female nominees to the Court -- O'Connor, Ginsberg and Sotomayor -- they have all been confirmed. There have been only two African-American nominees -- Marshall and Thomas -- and they were both confirmed. The one and only female/minority nominee was (the aforementioned, and confirmed, nominee) Sotomayor.

All of the defeated nominees were white males: Whittaker, Fortas, Thonberry, Haynesworth, Carswell and Bork.

And what the study did say, explicitly, is that while many legal scholars presume that Supreme Court confrimation hearings took a sudden turn with the 1986 hearings in which liberal Democrats on the Senate Judiciary Committee attacked Judge Robert Bork of the U.S. court of Appeals, the author suggests that it was really the hearings on then-Associate Justice Rhenquist's nomination to Chief Justice that changed the landscape of the hearings. Which is a distinction without a difference; the fact is that liberal Democrats have, for years, regarded the United States Supreme Court as an instrument of social change and have taken any means necessary to shape the Court's membership, as much as possible, to liberal ends. And together, the Rhenquist and Bork hearings, more than any others in modern American history, have shaped the proceedings as ideological and personal attacks, and have driven underground any serious discussions of Constitutional law.

Jun. 29 2010 10:49 AM
Pat from Maplewood, NJ

I think the Republican committee members are having trouble wrapping their heads around this candidate, who is clearly so well qualified in her background and temperament. I am stunned that they would question her qualifications. she was the Dean of Harvard Law School, for crying out loud! Would they do this if the candidate were a man?

Jun. 29 2010 09:33 AM

My understanding of what Lori Ringhand seemed to have said is that one of the elements that can be used to determine how much tougher the questioning sessions are for the women nominees than for male nominees is that there is less "social talk" and "chit chat" and "breaks" in which the nominees are allowed to talk about more personal things like family soocial niceties and home life etc.
There is an irony in this as stated here. On one hand women nominees are said to be put through greater scrutiny than male ones and this can be said to be discriminatory and an act of male-dominated society trying to make things harder for women.

While some people can deny that that the questioning is any different than that for male nominees and that "studies" by certain researchers only look at intrepretable factors, it can also be said that though it is true that the questioning is indeed more grilling, it is not "anti-woman" to do such a thing since it means that it is acknowledged that a woman is more intelligent, and judicially-capable, and able to take it and should be held to a higher standard that has her proving her intellectual prowess and legal savvy; Males after all, cannot have so much expected of them.

Also , the supposed fact that it has been found that there is less "chatter" with the female nominees can, on one hand, be said to be an act of removing a woman from her natural inclination to just gravitate toward talk about "family" and "social niceties" (etc) and it can be said that this is what makes it hard for women nominees ; women can't be as-good or better Supreme Court justices than men because women cannot seperate their domestic lives from their work thus they cannot fully concentrate on the duties of the job.

If there is supposedly less "chatter" with women nominees, isn't it a good thing since it means that women are not going to be treated as if they need it, or as if women are naturally social rather than businesslike? Wouldn't it be stereotyping a woman to always bring up family and home life all the time just because the person is a woman?

Remember, it is highly believed that a woman justice cannot merely be put to decide on issues that exclusively involve women such as equal pay, military service, and the right to choose (etc) since it is assumed that a woman will just automatically look at these and other such issues as a woman first and a judge second.

Jun. 29 2010 09:03 AM

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